FCC thinks it can overturn state laws that restrict public broadband

Wheeler points to dissenting court opinion to make his case.

When FCC Chairman Tom Wheeler announced his net neutrality plans today, he also said he wants to examine state laws that prohibit or restrict the ability of cities and towns to offer Internet service.

As we've written, ISP lobby groups have won restrictions on municipal broadband in 20 states, and they are trying to push through more such laws. Lobbyists and their lawmaker friends have been emboldened by a 2004 US Supreme Court decision that said the Telecommunications Act "allows states to prevent municipalities from providing telecommunications services," according to a summary of the case.

Further Reading

Lobbyist for Comcast, Cox, TWC wrote bill to stifle rivals like Google Fiber.

But the situation isn't as clear-cut as that, it may turn out. Wheeler believes a dissent written by a judge at the US Court of Appeals for the DC Circuit gave the FCC some room to step between states and municipalities on this issue.

"The Commission will look for opportunities to enhance Internet access competition," Wheeler said in a statement. "One obvious candidate for close examination was raised in Judge Silberman’s separate opinion, namely legal restrictions on the ability of cities and towns to offer broadband services to consumers in their communities."

Judge Laurence Silberman dissented from his fellow judges in a 2-1 decision last month, arguing against the majority opinion that Section 706 of the Telecommunications Act gives the FCC authority to enforce net neutrality rules. (Separately, Silberman agreed with the majority opinion that the FCC had failed to justify common carriage rules.) However, Silberman wrote that the FCC does have authority to take "measures that promote competition in the local telecommunications market or other regulating methods that remove barriers to infrastructure investment.” In a footnote, Silberman wrote that "[a]n example of a paradigmatic barrier to infrastructure investment would be state laws that prohibit municipalities from creating their own broadband infrastructure to compete against private companies."

Silberman's opinion raises the possibility that the commission could remove state-level legal restrictions that prohibit or limit the ability of cities and towns to offer competitive broadband service, according to a senior FCC official who is familiar with Wheeler's thinking.

So what about that Supreme Court ruling? The official said that the case, Nixon v. Missouri Municipal League, involved a situation in which the FCC declined to support municipalities resisting state laws limiting public broadband. If the commission were to support municipalities against state restrictions in a future case, courts could interpret the laws differently, the official said. In the Supreme Court case, a group of local governments in Missouri asked the FCC to nullify a state law preventing municipal broadband service.

While many state restrictions on municipal broadband are already in place, new laws have been proposed in Kansas and Utah. Opposition has forced proponents of the bills to promise to rewrite them.

Texas is one of those states that has experienced regulatory capture with a complete ban on municipally owned telecom. Whatever Southwestern Bell - SBC - AT&T has wanted, the Texas Legislature has delivered for 30 years. Hopefully the FCC will break the hold that AT&T has on the Lege.

Texas is one of those states that has experienced regulatory capture with a complete ban on municipally owned telecom. Whatever Southwestern Bell - SBC - AT&T has wanted, the Texas Legislature has delivered for 30 years. Hopefully the FCC will break the hold that AT&T has on the Lege.

But broadband isn't telecom. So says the FCC, and that's the whole reason we're in this pickle.

The fact that Wheeler addressed it at all is a hopeful sign. Though a lobbyist he's not turning out to be a 100% shill. I think he's peeved Verizon curb stomped him so badly.

Wheeler had nothing to do with the NN rules or with VZ's win in court. If anything, he probably opposed the rules in his former life. He may be FCC Chairman now, but I can't see why he'd have any emotional attachment to an order written by the previous chairman and that he had nothing to do with.

The fact that Wheeler addressed it at all is a hopeful sign. Though a lobbyist he's not turning out to be a 100% shill. I think he's peeved Verizon curb stomped him so badly.

Wheeler had nothing to do with the NN rules or with VZ's win in court. If anything, he probably opposed the rules in his former life. He may be FCC Chairman now, but I can't see why he'd have any emotional attachment to an order written by the previous chairman and that he had nothing to do with.

except that he has professed attachment to the order. but yeah, it was likely all so he can get the job.

On the one hand I think the laws prohibiting cities from building there own networks is stupid and bought and paid for by the ISP cartel.

On the other hand I'm not sure I like the thought of a Federal Agency being able to nullify state laws because they don't like them.

You are right on both counts. The rub is that the people who would benefit from cities offering broadband are ultimately responsible for the mess we're in right now. Kind of like the frog in the water bit. Large ISPs only raise prices slowly so people get used to overpaying and then kill the possibility of competition quietly in the background.

The moral of the story is : Why haven't you called your state rep and chewed his/her ass out yet?

That's kind of the point of federal agencies surely? To curb the excesses of more-easily-purchased state lawmakers.

The purpose of federal agencies is to execute the policies established by Congress. The only time the federal government should preempt a state is if a state action frustrates a Congressional policy. It can be argued that state preemption of muni-fiber frustrates Congressional policy of nationwide broadband. Hence federal preemption is (arguably) justified.

So, we want the government to become an ISP? The same folks that run the DMV, Congress and the NSA? We want them to handle our internet traffic? And we want them to be neutral in their control over access? And we want them to enforce strict privacy constraints on...the government?

This will end well.

FYI- the folks that run the DMV are not the same folks that run the NSA or in Congress.

On the other hand I'm not sure I like the thought of a Federal Agency being able to nullify state laws because they don't like them.

nah, federal agencies can't do that only the federal courts.

From the article

Quote:

Silberman's opinion raises the possibility that the commission could remove state-level legal restrictions that prohibit or limit the ability of cities and towns to offer competitive broadband service, according to a senior FCC official who is familiar with Wheeler's thinking.

The commission would be the FCC which is not a federal court.And from Here

Quote:

The petition asked that the President direct the FCC to reclassify Internet service providers as "common carriers" which, if upheld, would give the FCC a distinct set of regulatory tools to promote net neutrality. The FCC is an independent agency.

So they aren't directly connected to the .gov Tell me again why they should be allowed to strike down state laws.

"Could, can, may, might possibly consider, should think about, would be interested in exploring...". Wheeler so far has not actually done anything except gift control of the Internet to large corporations. I won't believe the FCC is serious about "considering thinking about getting ready to act in the best interest of consumers" until I see some action. Until then, he will remain an A-1 asshat in my book.

So, we want the government to become an ISP? The same folks that run the DMV, Congress and the NSA? We want them to handle our internet traffic? And we want them to be neutral in their control over access? And we want them to enforce strict privacy constraints on...the government?

This will end well.

Not exactly.

Telcos (whether "telephone company" or "telecommunications company") would still be responsible for actually providing service. The government would, essentially, mandate and support the wires on the road to a headend somewhere, the ISP (any ISP) would supply a link from that headend to their backbone.

In this case, "the government" could (and probably should) be a functionally local entity. If you live in Boston, the Boston municipal government would maintain the wires; if you live in the nor'east corner of Bumfuck parish, then the Bumfuck parish county government would maintain the lines.

As with highways, the federal government would probably mandate certain conditions (minimum throughput, reliability, etc) and grant certain funds for upkeep.

What the government wouldn't necessarily do is actually supply "the internet"; they would just maintain "the pipes" to a competitive provider. When you contract with say Verizon, then (in a very broad sense) VZ would come in and patch from the port for your address to the Verizon network. The government maintains the network from your house to the head, Verizon past that point.

On the other hand I'm not sure I like the thought of a Federal Agency being able to nullify state laws because they don't like them.

nah, federal agencies can't do that only the federal courts.

From the article

Quote:

Silberman's opinion raises the possibility that the commission could remove state-level legal restrictions that prohibit or limit the ability of cities and towns to offer competitive broadband service, according to a senior FCC official who is familiar with Wheeler's thinking.

The commission would be the FCC which is not a federal court.And from Here

Quote:

The petition asked that the President direct the FCC to reclassify Internet service providers as "common carriers" which, if upheld, would give the FCC a distinct set of regulatory tools to promote net neutrality. The FCC is an independent agency.

So they aren't directly connected to the .gov Tell me again why they should be allowed to strike down state laws.

Yes, but inevitably there will be a lawsuit against the FCC and some federal court will have the final say so.

"Could, can, may, might possibly consider, should think about, would be interested in exploring...". Wheeler so far has not actually done anything except gift control of the Internet to large corporations. I won't believe the FCC is serious about "considering thinking about getting ready to act in the best interest of consumers" until I see some action. Until then, he will remain an A-1 asshat in my book.

At the very least it appears he is not familiar with the issues and don't know what to do in the job.

So, we want the government to become an ISP? The same folks that run the DMV, Congress and the NSA? We want them to handle our internet traffic? And we want them to be neutral in their control over access? And we want them to enforce strict privacy constraints on...the government?

This will end well.

Not exactly.

Telcos (whether "telephone company" or "telecommunications company") would still be responsible for actually providing service. The government would, essentially, mandate and support the wires on the road to a headend somewhere, the ISP (any ISP) would supply a link from that headend to their backbone.

In this case, "the government" could (and probably should) be a functionally local entity. If you live in Boston, the Boston municipal government would maintain the wires; if you live in the nor'east corner of Bumfuck parish, then the Bumfuck parish county government would maintain the lines.

As with highways, the federal government would probably mandate certain conditions (minimum throughput, reliability, etc) and grant certain funds for upkeep.

What the government wouldn't necessarily do is actually supply "the internet"; they would just maintain "the pipes" to a competitive provider. When you contract with say Verizon, then (in a very broad sense) VZ would come in and patch from the port for your address to the Verizon network. The government maintains the network from your house to the head, Verizon past that point.

It looks like the muni bans are aimed at "City Councilman Bob has a crappy little ISP. The city is collecting an ISP-like monthly fee from everyone in town whether they have Internet or not, and offering ISP hookups for really cheap to undercut the legitimate telcos." Of course, no one could defend such a set-up... but it is a straw-man. The real purpose of the ban is to stop these dumb pipe services that eat away at the ISPs' monopoly power derived from huge infrastructure requirements.

So, we want the government to become an ISP? The same folks that run the DMV, Congress and the NSA? We want them to handle our internet traffic? And we want them to be neutral in their control over access? And we want them to enforce strict privacy constraints on...the government?

This will end well.

FYI- the folks that run the DMV are not the same folks that run the NSA or in Congress.

Odd...my understanding is that they're all government employees...maybe I missed something.

I don't want local, state or federal government in the business of providing internet...elected, appointed or hired.

I live in rural Idaho. I have one choice for internet (local provider) unless you count satellite, which I don't. I would like the government to put in rules that make competition more possible, but I don't want the government investing in the infrastructure. One of the primary functions of government is to make laws/policies. They should fix the problem through legislation (anti-competitive monopolies) not become part of the problem.

Based on the other response that served up Boston as an example...LOL...you've not spent any time in Boston. That is one of the most bought-and-sold, anti-competitive group of political hacks in the country.

Keep the government OUT of the internet.

Living in a different rural area, I'm all for a LOCAL government providing a service that the incumbent telecom and cable companies refuse to provide. There are large areas of the towns where I live and work that cannot get service at all. The cable company has explicitly said they will not provide service due to "low customer density". The phone company won't provide DSL because it would require adding too many local access points (which cost money). If they would do what we needed, all good. But they wont.

So, we want the government to become an ISP? The same folks that run the DMV, Congress and the NSA? We want them to handle our internet traffic? And we want them to be neutral in their control over access? And we want them to enforce strict privacy constraints on...the government?

This will end well.

FYI- the folks that run the DMV are not the same folks that run the NSA or in Congress.

Odd...my understanding is that they're all government employees...maybe I missed something.

ya, you missed that part where they don't all march to the beat of the same drummer. that they don't act as one monolithic entity. about the only thing they have in common is the are indeed government employees.

So, we want the government to become an ISP? The same folks that run the DMV, Congress and the NSA? We want them to handle our internet traffic? And we want them to be neutral in their control over access? And we want them to enforce strict privacy constraints on...the government?

This will end well.

FYI- the folks that run the DMV are not the same folks that run the NSA or in Congress.

Odd...my understanding is that they're all government employees...maybe I missed something.

I don't want local, state or federal government in the business of providing internet...elected, appointed or hired.

I live in rural Idaho. I have one choice for internet (local provider) unless you count satellite, which I don't. I would like the government to put in rules that make competition more possible, but I don't want the government investing in the infrastructure. One of the primary functions of government is to make laws/policies. They should fix the problem through legislation (anti-competitive monopolies) not become part of the problem.

Based on the other response that served up Boston as an example...LOL...you've not spent any time in Boston. That is one of the most bought-and-sold, anti-competitive group of political hacks in the country.

Keep the government OUT of the internet.

I wouldn't disagree that I definitely don't want the federal government handling any sort of ISP.

However at the local level, some towns and municipalities actually have governments that work and exist for their citizens' benefits. Now, that's not to say that every town across America should invest in its own ISP, but the freedom for the CITIZENS of that location to decide for themselves if they want their tax dollars to do so (in the absence of compelling alternatives) should not be stripped away from them at the state level by mono/duopolistic corporations.

If you and the other citizens of your locale feel strongly anti-government that you would strongly oppose your county/town developing its own ISP then that is your and your townsmen's prerogative. But this option should remain on the table locally for whatever towns do want it.

Local government owning the lines for internet effectively becoming an ISP, NO! But providing a subsidy to local/ regional providers to east the cost incurred so people have have access more readily available and increase competition, why not.

Local government owning the lines for internet effectively becoming an ISP, NO! But providing a subsidy to local/ regional providers to east the cost incurred so people have have access more readily available and increase competition, why not.

This will not increase competition. It will only fatten the profits of incumbents.